European Union (Withdrawal) (No. 6) Bill

Debate between Lord Lilley and Lord Goldsmith

Committee: 1st sitting (Hansard): House of Lords
Friday 6th September 2019 Lords Chamber

[Lord Goldsmith]

I beg to differ from the noble Lord. The Committee will also bear in mind that anything the European Council does, or seeks to do, is itself subject to the requirements of the treaties. If it does something which is thought to be outside the treaties, that is justiciable in the courts of this country—we now know very well that they can do that—but also in Brussels and Luxembourg. I do not see a problem with that. I do not see the difficulty that is raised. The Bill is clear that, if we get the answer, “You can have this extension to this date”, the Prime Minister has to act. If the date is different, that is a different consideration, and will have to be considered by the Commons. However, if we were to make an amendment now to deal with something that we are being advised the European Council could not do, we would be defeating the Bill because we would be sending it back to the Commons, which would not be sitting to receive that amendment and deal with it. I therefore respectfully invite the noble Baroness to withdraw her amendment. If she does not do so, certainly we will oppose it.

[Lord Lilley]

My Lords, I am not a lawyer but, from what I have heard, I believe that this amendment carries considerable weight. I am not persuaded, even by the noble Lord, Lord Kerr, that conditions could not in practice be imposed. We know that that has been talked about frequently by the leaders of our partners in Europe and by European Commissioners. Are noble Lords able to tell me what would happen if, when we asked for an extension, those in the EU asked what it was for? They have repeatedly asked us that. What if we said that we did not know, and they then told us that we could therefore not have an extension? Or what if we told them that we were going to have a referendum, and they then said that we could have an extension? Is the noble Lord, Lord Kerr, saying that that process of discussion and dialogue could not happen? It seems to be quite compatible with paragraph 3 of Article 50, which says:

“The Treaties shall cease to apply to the State in question from the date of entry into force of the … agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned”—


implying that there may be a range of things to be agreed—

“unanimously decides to extend this period”.

What I originally wanted to ask was this. To my mind, this amendment raises a rather more fundamental question about Clause 3(1), which begins:

“If the European Council decides to agree an extension”.


It can decide only by unanimity. Once it has decided, its decision is European law and binding upon us. There is therefore no possibility of coming back to the House of Commons and overruling that decision. We were told that in March, when the Prime Minister went to the Council and agreed an extension. When she came back, people in the House of Commons wanted to have a vote on it and were told, “You can have a vote if you like but it is law anyway”. The assurances we have been given that Parliament itself could overrule an agreement, or not agree to a decision made by the Council, if we did not like its length or any terms that might be implicit in it are, as far as I understand it, simply not true. Now, I am not a lawyer —those were my opening remarks—but if a lawyer is prepared to stand up and say that a decision of the European Council is not binding in European law, and therefore not binding on us before we have left, my objection falls. If not, we have found a very major weakness in the Bill.